Stalking in NSW or intimidation is an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007. An offence is committed if a person stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm.

Attempting to commit the offence of stalking or intimidation is also considered to be an offence with the same penalties as if the offence was actually committed.

Elements of Stalking in New South Wales

For the prosecution to prove that a crime has been committed, they must prove that each of the elements of the offence are evident beyond reasonable doubt. Thus, to obtain a conviction of the offence of stalking or intimidation in NSW, the prosecution must prove that the accused had both the intention to cause fear of physical or mental harm and that their behaviour(s) committed or attempted constitute stalking or intimidation.

Behaviours that constitute stalking or intimidation

The legislation in NSW has a broad definition of what behaviour may constitute stalking or intimidation, which includes the following:

Following a person;

Approaching, watching or frequenting a person’s residence, work, business or a place that a person frequents for a social or leisure activity;

Conduct that amounts to molestation or harassment of a person;

Any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship;

Trying to contact the person by any means (which includes using text messaging, email, social media, telephone, or other technologically assisted means) which causes the person to fear for their safety; or

Any conduct that causes a reasonable apprehension of violence or damage to any person or property.

Some examples of situations which could be considered as stalking in NSW may include:

When determining whether a person’s conduct would amount to stalking in NSW, the court will have regard to any pattern of violence. Particularly, any violence which constituted a domestic violence offence.

Intention to cause fear of mental or physical harm

The intention to cause the other person to fear mental or physical harm is present if the person who intends to cause the harm knows that the conduct is likely to cause fear in the other person.

The prosecution does not need to prove that the victim actually feared any physical or mental harm.

The legislation also broadens the offence by including the fear of harm to anyone with whom the victim has a domestic relationship with.

Defences

A legal argument may be that there is a lack of evidence that all the elements of the offence can be proved. It may be argued that the accused did not have the necessary intent and did not intend to cause any fear of harm.

Another defence may be that the accused had a legitimate reason for the behaviour, such as working in the same building.

General criminal law defences may also apply and can include:

Necessity – where a person is compelled by a threat of danger to commit the offence; or

Duress – where a person commits the offence due to pressure or undue persuasion by another person.

Penalties

Stalking or intimidation with intent to cause fear of physical or mental harm is a serious offence. If convicted the maximum penalty is five years’ imprisonment and/or a fine of $5,500 (50 penalty units).